Is budget Padding An Offence? Lawyers Disagree Over Allegation

Is budget padding an offence? Two Senior Advocates of Nigeria (SANs) Mallam Yusuf Ali and Sebastine Hon, a constitutional lawyer, believe it is not.
To them, it can only amount to an offence if the appropriation bill as passed by the National Assembly is signed into law by the President.

But a former Ikeja Branch chairman of the Nigerian Bar Association (NBA), Mr. Monday Ubani, University of Lagos (UNILAG) law teacher Wahab Sh!ttu and Lagos lawyer, Fred Agbaje, are of the opinion that budget padding, even when not passed, constitutes not only an offence, but a violation of the constitution.

They spoke in separate telephone interviews in reaction to the statement made on Friday by Speaker Yakubu Dogara of the House of Representatives that budget padding does not violate any law of the land.

Ali said: “Padding means ‘adding to’. A budget is incomplete until it is passed and assented to by the president or governor.

“For now, it’s a bill, that’s why it’s called budget proposal. It’s not an act or law yet. The budget proposal is like any other bill to be passed into an act.

“If, for instance, the executive sends the Petroleum Industry Bill to the National Assembly, must it be passed the same way it was sent? Can they not alter some sections, as is done during public hearings? Will that be padding?

“The legislature is not bound under the constitution to pass a bill the way it is presented, either by a member or by the executive.

“You can’t say a budget has been padded except people inserted new things after the president assented to it, in which case they’re changing the texture of the law.

“What will amount to an illegality is when a bill has been passed into law and anybody now adds to it after it has been assented to. It’s like changing the sections of a law that has already been passed. That’ll be an offence.
“A budget proposal can be deducted from or added to. The total figure of a budget proposal may increase or decrease.

“More than any other thing, there’s nothing like the offence of padding under our law. For me, we should leave politics and sentiments and deal with the law.”
Hon holds a similar view, saying the House of Representatives leadership did no wrong by adding to the budget.

His words: “Section 81 (1) of the 1999 Constitution provides that the President shall lay before the National Assembly the estimate of expenditure and income, that it, the budget for the following financial year.

“Laying the estimate before the National Assembly does not contemplate that the estimate must be passed as laid. It contemplates that the National Assembly can deliberate on it, and in doing so can easily add or subtract from the estimate. Indeed if the National Assembly adds to, it can’t amount to padding of the budget or a crime. There’s no crime known to law as budget padding.

“Sections 36 (8) and (12) of the Constitution are to the effect that no person shall be punished for a crime not known to law. So, there’s never a crime known as budget padding.

“And the National Assembly is not a rubber-stamp assembly as to swallow hook, line and sinker what the President has sent to them. They deliberate on it and make input. That is why they’re part of the Federal Government of Nigeria.
“We should be very wary of bringing down persons and institutions in this country.”

But Ubani, the NBA Vice President-elect, believes there was a criminal intent in the bid to add to the budget.

He said: “The point is that if a certain amount of money is provided for, maybe for the building of road, and the amount of money provided by the executive is N20, and then you add N10 to it, there’s a criminal intent.

“If the budget is passed, that N10 you added becomes your own. You know how to get the money out because they know that the money is disbursed to members of the National Assembly.

“By adding that amount that was not meant for the road, there’s a criminal intent. Or that you add a certain amount of money for a heading that is not provided for by the executive, contrary to the provisions of the Constitution, that’s even unconstitutional.

“We must define who has the right to table before the National Assembly the estimate and income for the year. It is that of the executive. What the House needs to do is to appropriate. It’s either they add or reduce.

“But to add what is different from what the executive brought before them is clearly unconstitutional and to me it’s criminal.

“You have no right to do what the law does not provide for. What they can only do, if they want constituency projects, is to route it through the executive, which will insert it in the bill and present it before them.

“It’s not for them to add, and most times they add these things for own interests not for the nation. All those sums that have been provided for constituency projects, if they had been using them, by now our constituencies would have been eldorado, but they put the monies into their provide pockets. So, that’s why it’s criminal.

“I don’t think that Dogara should even say things like that (that it’s not an offence). In doing that, he’s provoking Nigerians the more. And that’s the impunity that we experienced under PDP.

“Even though we know most of them came from PDP, we don’t want such things to continue under this dispensation, especially under the mantra of change. It’s very unfortunate.”
Sh!ttu said the issue as to whether budget padding is an offence is not debatable.

“There’s no doubting that budget padding is not only an offence, but a gross offence that is in violation of the Constitution.

“When you insert into a budget that is supposed to be laid by the executive matters that are alien to the budget, you have altered the character of budget as presented to you in a manner not contemplated by the person who initiated the document.

“And if you do that without consent and due procedure, and without following constitutional provisions, you have committed a crime – a breach of the constitution which is also gross misconduct.

“The issue as to whether it’s an offence is not debatable. Whether he (Dogara) is guilty of padding is another issue, which is a function of proof.

“I think he should rather say he’s not involved in padding rather than say that padding is not an offence. They should not continue to insult our intelligence,” Sh!ttu said.

Lagos lawyer, Fred Agbaje, said Dogara and his supporters in the House of Reps have no respect for morality.

“What they did is totally unlawful and unconstitutional and must not be allowed to stand at all,” he said.
He added: “It is only the president that has the constitutional right to add and subtract anything from the budget. Therefore the addition by the House of Reps which was clearly with the intent to steal is criminal. It is the height of dishonesty and another name for it is fraud.

“I expect the Attorney General of the Federation ably represented by the EFCC and the Inspector General of Police to go after the leadership of the House of Reps. By now they should be fighting to get bail. I read through the papers that the Federal Government wants to intervene.

This is absolutely wrong. We’re not under the leadership of the Peoples Democratic Party (PDP) who may want to consider such acts of criminality a family affair. If the Federal Government fails to act appropriately, it will be a serious dent on the fight against corruption.”